Business development teams, especially those supporting labor law practices, should take a renewed interest in pitching their services to private universities. In early September, the National Labor Relations Board (NLRB) ruled that graduate students working as teaching and research assistants at private universities are employees and have a federally protected right to form a union. This decision is important because it fundamentally changes the nature of the relationship between graduate students and private universities. Language from both the graduate students and the NLRB about the line between academia and employment all but guarantees that this issue has not seen its last day in court, meaning there is significant opportunity for firms to position themselves to assist universities dealing with these complex issues.
By way of background, a group of graduate students from Columbia University filed a petition with the NLRB to address the question of whether graduate students at private universities should be classified as employees of the school. The graduate students want to be recognized as employees so that they can unionize and have greater input regarding their employment conditions while the universities assert the relationship is mostly academic in nature and unionization would disrupt school operations. This ruling only applied to private universities because state law already covers the rights of graduate assistants at public universities.
Opinions are sharply divided on this ruling, with detractors predicting large-scale disruptions to academic operations while supporters are claiming that such a ruling is long overdue and fears about academic disruption are overblown.. However, for all their assurances about not disrupting academic operations, both the graduate students and the NLRB have indicated that litigation over this issue is far from over, and that the line between the university’s dual role as educator and employer is far from clear.
The NLRB outright states that more litigation over the line between employment and education will be needed. Federal labor law limits an employer’s duty to bargain to matters of wages, hours, and other terms and conditions of employment, and the NLRB admits that defining “the precise contours of what is a mandatory subject of bargaining for student assistants is a task that the Board can and should address case by case.” All three of these subjects have somewhat nebulous definitions when applied to the situation of graduate assistants. Stipends could obviously be considered wages, but what about scholarships, housing, or health insurance? Are tasks done while assisting a professor with academic research done as a student or as an employee? The NLRB did not even attempt to delineate which issues fell where, but conceded that would have to be sorted out by future NLRB rulings on a case by case basis.
So if the graduate students are not going to be appeased by simple stipend increases, according to Paul Katz one of their representatives, and the NLRB punts the decision on drawing a line between academic and employment matters to future rulings, it’s hard to see how this issue does not continue to appear in court. Regardless of whether or not such negotiations, arbitration, and litigation “disrupt” academic operations, it is clear that union and university lawyers will be spending a lot of time hashing out these issues.
Since public universities have already been dealing with this issue for some time, business development teams should check with their labor practices to see if any of their attorneys have participated in these types of negotiations and market that experience to private universities. Law firms with substantial labor law practice groups should be able to help universities and unions wade through these complex issues and should be taking a fresh look at their university prospects as a result.
By Mona Amin and Alexander Lange, account supervisors at Levick, for the September/October 2016 issue of Capital Ideas